About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


45 Medico-Legal J. 1 (1977)

handle is hein.journals/medlgjr45 and id is 1 raw text is: THE MEDICO-LEGAL JOURNAL Founded 1901 Vol. 45 1977 Part One EDITORIAL The Incapacitated Principal THE AVERAGE layman would probably be very surprised to learn that a power of attorney is revoked just at the point when he would regard it as being most needed. These words taken from the introduction to the Law Commission's Working Paper entitled The Incapacitated Principal fairly state the initial impression which the reader gets from a study of this document.* The paper is concerned with the present law relating to Powers of Attorney following the Lord Chancellor's request in 1973 that the Law Commission consider the law and practice governing powers of attorney and other forms of agency in relation to the mental incapacity of the principal, and to make recommendations. The present law is first reviewed and it is clear that mental incapacity may avoid a contract except for necessaries; it also invalidates a power of attorney and hence an agent's authority, except where this is unknown to the third party. The mentally ill are, of course, vulnerable to exploitation by others and need to be shielded from the consequences of their actions. The Court of Protection may exercise control over the affairs of mentally ill persons, and these statutory functions may be exercised through a receiver appointed by the Court. The appointment of a receiver brings to an end any power of attorney which may be in existence. The Law Commission have therefore investigated the possibility of an enduring power of attorney being created which would survive the mental incapacity of the principal. The arguments for and against such a power are put succinctly in the Report and the Commission has considered a memo- randum from the Law Society as well as the laws of several Provinces in Canada where a similar system is in operation, and also the United States Model Act on Powers of Attorney. The Law Commission, having weighed the arguments, has come down, rightly it is submitted, in favour of creating such a power, but subject to certain safeguards. While coming down against any form of registration of the deed, *The Law Commission-Working Paper No. 69, The Incapacitated Principal, HMSO, £1.35.